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Himachal Pradesh High Court · body

2019 DIGILAW 210 (HP)

Surjit Singh v. Janak Raj

2019-02-28

SANDEEP SHARMA

body2019
JUDGMENT Sandeep Sharma, Judge (Oral) - Mr. Sanjeev Suri, learned counsel for the respondent states that he does not intend to file reply to the petition and has no objection in case petition is heard and decided on the basis of material available on record. 2. Question which needs to be determined and decided by this Court in the instant proceedings is whether the Court below while disposing of the application under Order 39 Rule 7 read with Section 75, 94 & 151 CPC could proceed to vacate the ex-parte ad interim injunction already granted in favour of the plaintiff on the basis of material adduced before it at the time of filing civil suit? 3. For having birds eye view, necessary facts as emerge from the record are that the plaintiff (petitioner herein) filed a civil suit for permanent prohibitory injunction against the defendant (respondent herein) for restraining him from raising any construction over the suit land as described in head note of the plaint. Civil suit referred herein above came to be filed on the averments that the suit land is jointly owned and possessed by co-owners including parties to the suit and the same has not been partitioned by metes and bounds and, as such, the defendant cannot be allowed to raise construction on specific and valuable portion of suit land. Alongwith the aforesaid suit, plaintiff also filed an application under Order 39 Rules 1 & 2 CPC (Annexure P-l). Learned Civil Judge, Court No.II, Una vide order dated 20.03.2017 after having perused the material made available on record by the plaintiff, directed the parties to maintain status quo qua nature and construction over suit land till further orders. Vide aforesaid order, Court also directed that compliance of order 39 Rule 3 CPC be made forthwith and thereafter show cause notice be issued to the respondent for 03.04.2017. 4. Since despite issuance of aforesaid status quo order respondent failed to stop construction on the suit land, plaintiff approached the learned Court below by way of application under Order 39 Rule 7 read with Sections 75, 94 & 151 CPC, prayingtherein to provide police assistance for enforcement of order dated 20.03.2017 passed by the Court below directing the parties to maintain status quo qua nature and construction over suit land. In the aforesaid application plaintiff while claiming that despite having received a copy of order dated 20.03.2017, respondent is raising construction over the suit land, prayed that he be provided police assistance. 5. Material available on record reveals that on the aforesaid application notice came to be issued to the respondent, who by way of reply claimed before the Court below that plaintiff has obtained interim stay by concealing material facts and no construction is being raised by him on the suit land in violation of order passed by the Court. Respondent further claimed that he had filed caveat petition under Section 148-A CPC on 16.3.2017, which was registered as 09/17 dated 16.3.2017 at Server Room and notice of the same was also issued to the plaintiff and, as such, no interim order dated 20.3.2017 could be passed by the Court below without hearing him. The learned Court below vide order dated 25.3.2017, dismissed the application filed by the plaintiff under Order 39 Rule 7 read with Section 75, 94 and 151 CPC on the ground that he concealed the material facts from the Court at the time of passing of order on 20.3.2017. In view of the aforesaid background, plaintiff has approached this Court in theinstant proceedings filed under Article 227 of the Constitution of India, praying therein to set aside aforesaid order dated 25.03.2017. 6. Mr. Y.P. Sood, learned counsel for the plaintiff while referring to the provisions contained in application under Order 39 Rule 7 read with Section 75, 94 and 151 CPC strenuously argued that the Court below ought not to have passed impugned order dated 25.03.2017 because by way of aforesaid application plaintiff had sought police assistance for enforcement of order dated 20.03.2017. He further contended that bare perusal of order dated 25.03.2017 suggests that Court below while passing the impugned order has gone astray and altogether different facts, which were not relevant at all for the adjudication of the application seeking police help, have been taken into consideration while passing order dated 25.03.2017. He further contended that while deciding this application Court below was only required to see whether interim order granted by it is being implemented in letter and spirit and with a view to protect the dignity of the Court, it ought to have allowed the prayer of the plaintiff for police assistance. Lastly, Mr. He further contended that while deciding this application Court below was only required to see whether interim order granted by it is being implemented in letter and spirit and with a view to protect the dignity of the Court, it ought to have allowed the prayer of the plaintiff for police assistance. Lastly, Mr. Sood contended that application, if any, filed by the respondent under Order 39 Rule 4 CPC ought to have decided by the Court below separately and no finding qua the same could be recorded in the impugned order. He further contended that caveatpetition filed by respondent was to be listed by the Registry of this Court and there is no material to demonstrate that plaintiff was served with a copy of caveat petition on 16.03.2017. 7. To the contrary, Mr. Sanjeev Suri, learned counsel for the respondent stated that bare perusal of impugned order dated 25.03.2017, nowhere suggests that Court below while denying police assistance to the plaintiff proceeded to vacate the interim order dated 20.03.2017. Rather, application filed under Order 39 Rule 7 read with Section 75, 94 and 151 CPC came to be dismissed vide impugned order on the ground that plaintiff suppressed material facts from the Court at the time of passing of order dated 20.03.2017. 8. Having heard learned counsel for the parties and perused the material available on record, especially the order dated 20.03.2017, it can be safely concluded that on 20.03.2017 Court below after having perused the material placed on record arrived at a definite conclusion that balance of convenience lies in favour of the applicant and, as such, proceeded to direct the parties to maintain status quo qua nature and construction over suit land. 9. Needless to say that caveat petition filed by the respondent was to be listed before the Court by the Registry of Court. More so perusal of impugned order dated 25.03.2017, no where reveals that respondent placed on record documents, if any, to prove thata copy of caveat petition filed by him was served upon the plaintiff on 16.03.2017 and, as such, this Court is of the view that there was no occasion for the Court below while passing order dated 25.03.2017 to observe that plaintiff obtained interim order dated 20.03.2017 by concealing material facts. Rather bare perusal of order dated 20.03.2017 itself suggests that material, which was required to satisfy the Court below that prima facie case exists in favour of the plaintiff, was made available by the plaintiff. 10. Leaving everything aside, this Court finds that the Court below while passing order dated 25.03.2017 has misdirected itself because there is no reason assigned by the Court below while denying police assistance to plaintiff for enforcement of order dated 20.03.2017, rather, application appears to have been dismissed merely on the ground that plaintiff at the time of passing order dated 20.03.2017 failed to apprise the Court with regard to filing of caveat petition by the respondent. It also emerge from the order dated 20.03.2017 that respondent categorically stated before Court below that he is not raising any construction over suit land and, as such, at that time Court could direct both the parties to maintain status quo, however, it proceeded to pass order dated 25.03.2017, which though suggests that only application filed under Order 39 Rule 7 read with Section 75, 94 & 151 CPC by the plaintiff came to be dismissed, but if this order isread in its entirety it certainly suggests that interim injunction granted by the Court vide order dated 25.03.2017 was also ordered to be vacated. 11. Be that as it may be. In view of peculiar facts and circumstances discussed herein above, this Court deems it fit to dispose of the present petition at this stage clarifying that the order dated 25.03.2017 passed by the Court below, shall be deemed to have been passed on the application filed by the plaintiff under order 39 Rule 7 read with Section 75, 94 & 151 CPC and application having been filed by plaintiff, praying therein for interim stay, shall be considered and decided by the Court below separately on the basis of facts and circumstances of the case on its own merits. Observations, if any, made in order dated 25.03.2017 shall have no bearing on the order, which will be passed in another application filed by plaintiff under Order 39 Rule 1 & 2 CPC. Similarly, application, if any, filed by respondent under Order 39 Rule 4 CPC, if not already decided, shall be decided independently being uninfluenced by observations made in order dated 25.03.2017 by the Court below while affording opportunity of being heard to both parties. Ordered accordingly.